Federal Court To Decide Fate Of Virginia Law That Criminalizes Internet Content

Attorneys Cite Constitutional Concerns, Seek to Permanently Block Law

Attorneys for organizations concerned about constitutional rights and free expression appeared in federal court in Virginia, seeking a ruling to strike down a state law criminalizing Internet content. People For the American Way Foundation (PFAWF), which is serving both as co-counsel and plaintiff in PSINet v. Chapman, has argued that the 1999 Virginia law violates both the First Amendment and the Commerce Clause of the U.S. Constitution.

The Virginia law criminalizes the "knowing display" on the Internet of material deemed "harmful to juveniles" if the display is "for [a] commercial purpose [and] in a manner whereby juveniles may examine or peruse" the materials. Because most Internet communications are available to minors, the law’s broad definitions of "knowing" and vagueness about what constitutes "commercial purpose" make it a nightmare for businesses on the Internet.

Judge James H. Michael, Jr., presiding over the Federal District Court for the Western District of Virginia, appeared sympathetic to this argument and even recited the aphorism: "When you write a law, write it tight." Judge Michael said that he expected to rule soon on today’s motion to permanently nullify the Virginia law.

Early last year, Judge Michael issued a preliminary injunction that blocked the Virginia law from taking effect, noting that the court was likely to find that the law violated constitutional rights. In today’s PSINet v. Chapman hearing, plaintiffs’ attorneys sought to permanently invalidate the law. Similar state laws in New York, New Mexico, and Michigan already have been struck down for violating constitutional rights. In addition, two similar federal laws have been blocked on constitutional grounds.

"Some of the people pushing for these state laws have cloaked themselves in the ‘pro-family’ rhetoric," said PFAWF President Ralph G. Neas. "Yet, these legislators have sought to usurp authority from families and individuals, and hand it over to the government. Parents and other adults should be free to decide whether to install Internet filters on home computers or to closely monitor their children’s online use. To force government to step in and decide for Americans what they can or can’t read on the Internet is a very dangerous approach."

Larry Ottinger, a senior staff attorney with PFAWF, said that the Virginia law is so vaguely written that it would have a disastrous effect on the free flow of information on the Internet. "This chilling effect would deprive adults and minors of a broad range of valuable information relating to health, literature, human sexuality, and the arts," said Ottinger. "The U.S. Supreme Court has referred to the

Internet as a ‘vast library.’ If the Virginia law were actually enforced, much of this library would suddenly be closed."

When it struck down the Communications Decency Act in 1996, the U.S. Supreme Court stated that since there is no universal definition of what is "indecent," criminal laws banning "indecency" on the Internet would discourage people from sending and being able to receive a wide range of valuable online materials—examples could include articles on breast cancer, photos of Michelangelo’s sculpture of "David," or special prosecutor Kenneth Starr’s report to Congress on the Monica Lewinsky affair.

At the same time, the Supreme Court noted the overwhelming obstacles to carrying out such a law, given that the Internet is a global medium in which information displayed in other parts of the world is just as available as information published within a particular state. The Supreme Court also observed that there is no feasible way to prevent minors from receiving most Internet communications.

"When it comes to addressing legitimate concerns about Internet content, there are no shortcuts," explained Ottinger. "The answer lies in educating parents and families on Internet use and providing them with the tools and options for managing their own use and their children’s use of the Internet. There are online resources that can help in this effort, resources that respect the fact that these decisions belong to parents and individuals, instead of the heavy hand of the government."

For example, Internet companies have worked with child advocates, parents’ groups and other non-profit organizations to launch a project called GetNetWise (www.getnetwise.org). GetNetWise is an educational resource that provides parents with a glossary of basic Internet terms, safety tips for Internet use, and how to report possibly illegal online activity. GetNetWise also provides links to hundreds of pre-screened high-quality Web sites for children that have been compiled by groups such as The Children’s Partnership and the American Library Association.